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In bombshell court papers unsealed in a defamation lawsuit against Al Jazeera America, the defunct cable news network says football legend Peyton Manning “confirmed” much of the doping allegations made by its primary source.
MLB superstars Ryan Zimmerman and Ryan Howard are suing Al Jazeera over a documentary entitled The Dark Side: Secrets of the Sports Dopers, which aired in late 2015 just weeks before the network went off the air and the baseball players brought their claims. The film was based on the reporting of Deborah Davies, with substantial assistance from Liam Collins, a British hurdler who went undercover. The report cited the word of Charlie Sly, who the network indicated was a pharmacist who had worked at the Guyer Institute in Indianapolis. After Al Jazeera’s story came out and made a splash by dropping the names of big-name athletes like Manning, Dr. Dale Guyer denied that Sly was ever an employee. Sly also recanted his story.
Zimmerman denies doping, and in the lawsuit accuses the network of basing its report on “patently unreliable” sources including Sly, who himself provided written advisement before publication that statements attributed to him were false.
In March 2017, a federal judge rejected Al Jazeera’s motion to dismiss, and the case moved to discovery.
In the past couple of months, the litigation has been shrouded in intense secrecy, but now some of the arguments pertaining to discovery efforts are emerging from cloak. The sides are currently warring over whether two top law firms — Gibson Dunn and David Wright Tremaine — have to hand over documents being claimed as privileged. What’s surprising is the prominent attention to Manning, one of the NFL’s all-time prolific passers, a five-time MVP and a two-time Super Bowl champion, including in 2015 when he led the Denver Broncos to success at the late age of 39 in the third-most watched T.V. program in American history.
According to memorandums from Al Jazeera, Davies contacted Manning’s CAA agent Tom Condon before the documentary aired to get comment on something that Sly had been recorded saying. Specifically, Sly stated, “I did part of my training at the Guyer Institute which is like this anti-aging clinic in Indiana. [Peyton Manning] and his wife would come in after hours and get IVs and s***. … So one thing that Guyer does is he dispenses drugs out of his office, which physicians can do in the United States it’s just not very many of them do it. … And all the time we would be sending [wife] Ashley Manning drugs. Like growth hormone, all the time, everywhere, Florida. And it would never be under Peyton’s name, it would always be under her name. … We were sending it everywhere.”
Nine days after Condon was contacted in December 2015, the prominent Gibson Dunn attorney Ted Olson called Robert Corn-Revere of DWT, the firm providing outside counsel to Al Jazeera.
“In their communications with DWT, the Mannings’ lawyers confirmed much of what Sly had said,” states unsealed court papers, although what was exactly said by Olson remains redacted.
But when it comes to Manning, who reacted strongly when the documentary came out by calling it a “total fabrication” and even was reportedly considering his own defamation lawsuit at one point, Al Jazeera has more to say.
“Plaintiffs contend that the Documentary should not have been broadcast because they have never used PES of any kind, and because, after learning his PES peddling was about to be aired, Sly created a short, homemade video in which he recanted every word he had ever said to Al Jazeera’s undercover reporter,” states Al Jazeera’s court brief. “Sly’s recantation rang hollow. As explained in Defendants’ Motion to Compel against Gibson Dunn & Crutcher LLP, Sly’s last-minute denials followed a visit to his family’s home by investigators hired by lawyers for National Football League player Peyton Manning … which prompted Sly’s sister to call 911. On the video, Sly appeared to be reading a statement that was prepared for him while sweating profusely, and his statements about Liam Collins’ character were clearly based on information that had been supplied to Sly. On top of that, the Mannings (through counsel) had already corroborated Sly’s most explosive claims, making his denials all the less believable.”
As the defendant looks to procure documents from Manning’s lawyers, probably in a bid to establish that Al Jazeera had no actual malice in anything it reported, it is looking to shield its own attorney communications too.
“Plaintiffs claim that Sly was the ‘single’ source and that Al Jazeera’s outside law firm, Davis Wright Tremaine ,served as a second or ‘corroborating source,’ ” states Al Jazeera. “Although contradictory, both claims are false. First, DWT was retained long before any Al Jazeera reporter ever met Sly, to act as Al Jazeera’s pre-broadcast libel review counsel for the Documentary. DWT was not a ‘source’ for anything that appeared in the Documentary. And the Documentary did not rely on a single source. The second, corroborating source for some of Sly’s statements was the Mannings, who voluntarily communicated facts to Al Jazeera through their lawyers at Gibson Dunn & Crutcher.”
The two sides continue to war over discovery demands.
“Plaintiffs’ brief spends fourteen pages attacking Defendants’ journalistic practices and ethics, then accuses Defendants of frustrating Plaintiffs’ discovery efforts,” continues Al Jazeera’s brief. “The opposite is true. In contrast to Defendants’ extensive productions, Plaintiffs have sought at every turn to obstruct Defendants from obtaining relevant discovery into Plaintiffs’ use of PES. Plaintiffs’ Amended Complaints assert that they have ‘never taken Delta 2, human growth hormone, or any other steroid or other performance-enhancing substance banned by MLB.’ Yet, when Al Jazeera sought to test these assertions by demanding discovery from Plaintiffs concerning their use of any banned PES, Plaintiffs limited their responses to their use or nonuse of a single PES, Delta- 2, and objected to providing any evidence relating to any other PES. Only after Al Jazeera sought permission from the Court to file a motion to compel this information did Plaintiffs finally produce additional documents. This is not the only example of Plaintiffs’ intentional obstruction of discovery. Discovery has revealed that both Howard and Zimmerman discarded their personal iPhones after threatening to sue Al Jazeera over the Documentary.”
In 2016, the NFL announced the results of its investigation of alleged HGH use by Manning and found “no credible evidence.”
UPDATE 6/1 09:19 pm: Here’s a statement from the Mannings’ spokesperson:
“Al Jazeera’s self-serving claim that Peyton Manning’s attorneys ‘confirmed’ Al Jazeera’s allegations about Peyton Manning is absolutely false. In fact, information was provided to Al Jazeera that confirmed the Al Jazeera allegations about Peyton Manning were unfounded. In addition, the sole source for Al Jazeera’s allegations has publicly recanted them. Moreover, the NFL conducted an extensive investigation of the claims raised in Al Jazeera’s programs and found no evidence to support them. This is a desperate move by Al Jazeera to distract the courts from its own wrongdoing.”
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